The law blog of Aurora attorney Mike Huseman, featuring practice updates authored by Northern Illinois University College of Law alumni, as well as guest contributions from non-NIU lawyers and law students.

Wednesday, January 18, 2012

"Your Papers, Please!" - The Second District Appellate Court holds refusing to identify oneself not a violation of the Resisting/Obstructing statute.

In People v. Fernandez, 2011 Il App (2d) 100473, the Second District Appellate Court tackled the question of whether refusing to identify oneself would run a-foul of the Resisting/Obstructing statute. The Court held that refusing to identify oneself was not a violation of Section 31-1 and reversed the defendant's conviction. In so holding, the Court followed in the footsteps of other court opinions reaching similar conclusions.

In Fernandez, Carpentersville Police responded to a complaint about a movie theater patron. When the officer arrived, the defendant was outside the theater and "visibly intoxicated." The officer requested the defendant's name, and the defendant refused to identify himself. The officer then placed him under arrest and charged him with obstructing under section 31-1 for "refus[ing] to identify himself (name and date of birth) and failed to provide any kind of identification to Officer Acevedo."

Section 31-1 of the Criminal Code makes resisting or obstructing an authorized act of a police officer a class A misdemeanor. 720 ILCS 5/31-1. Since 1968, Resisting or Obstructing required a physical act (e.g., "going limp, forcefully resisting arrest or physically aiding a third party to avoid arrest). People v. Raby, 40 Ill.2d 392, 399 (1968). Since Raby, Illinois courts have grappled with the term physical act.

When issuing its ruling, the Court noted several prior cases which dealt with refusing to provide police with information or refusing to comply with officers. In People v. Weathington, the Illinois Supreme Court held it was not a violation of section 31-1 to refuse to answer booking questions after being arrested. 82 Ill.2d 183, 187 (1980). In People v. Ramirez, the Fifth District Appellate Court held giving a false name was not a crime under section 31-1. 151 Ill.App.3d 731, 735 (5th Dist. 1986) (Since Ramirez, the Illinois legislature created a new crime called Obstructing ID, which makes giving a false name a class A misdemeanor. 720 ILCS 5/31-4.5.)

Finally, the Court noted that the Illinois Code of Criminal Procedure does allow an officer to ask for a name and address during a Terry stop. 725 ILCS 5/107-14. However, the court noted that the Illinois Criminal Code provided no corresponding duty of a suspect to respond to an officer.

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